The Claimant brought two claims in the employment tribunal in which he contended, among other matters, that he had two disabilities for the purpose of the Equality Act 2010 (‘EqA’): paroxysmal nocturnal haemoglobinuria (‘PNH’) and depression. The claims were presented following his absence from work in September 2020, which led to protracted disciplinary proceedings against him. He complained of various discriminatory acts, including acts said to have taken place in 2020, 2021 and 2022. It was conceded he was disabled by reason of PNH. At a preliminary hearing fixed to determine whether the Claimant had the disability of depression at the relevant time, the employment tribunal focussed on what was said to be an agreed relevant period of 22 to 25 September 2020 (the ‘Relevant Period’). In light of factors such as the lack of any clinical assessment, the overlap between symptoms of PNH and depression, and the absence of evidence that the Claimant had seen his GP in around September 2020, the employment judge decided that the Claimant was not disabled by reason of depression during the Relevant Period.

Held, allowing the appeal on the first ground but dismissing all other grounds:

(1) The time for assessing disability under s.6 of the EqA is the date of the alleged discriminatory acts. The period of September 2020 was the incorrect period in light of the pleaded claims. Focussing solely on whether the Claimant was disabled during the Relevant Period had the potential effect of determining the Claimant’s claims based on acts of discrimination occurring at other times, such as 2021 and 2022, against him, regardless of the outcome of the preliminary hearing. In those circumstances it was incumbent on the employment judge to ensure that the Claimant, as a litigant in person, properly understood those consequences and unequivocally agreed to September 2020 as the only relevant period, which did not happen. Because a fundamentally wrong period was chosen, it was not proper to have regard to the employment judge’s response to the EAT, explaining that he would have reached the same decision even if the focus were on later periods.

(2) The EJ was not required to accept the evidence of the Claimant in his disability impact statement of the adverse effects he said were caused by the impairment of depression. While it would have been preferable if the EJ had addressed each element of the statutory definition separately and the EJ did not consider the recurrent condition in §2(2) of Schedule 1, this finding was immaterial to his decision. The EJ did not wrongly treat the symptoms of PNH and depression as mutually exclusive; he gave sufficient reasons for his conclusion that the Claimant was not disabled during the Relevant Period; he did not require the Claimant to identify a clinically recognised mental impairment, nor was he required to accept the opinions in OHS reports or sparse GP records, nor did he misapply the burden of proof.

[Summary reproduced from the EAT judgment]